Juvenile Probation Violation Hearings and Detention in West Virginia

Attorney Answer

A probation-violation hearing can end with your 16-year-old being detained, so he should have a lawyer standing next to him at it. If you cannot afford one, an affidavit filed with the court gets one appointed.

W. Va. Code § 49-4-701 sets out the protections. Subsection (h) provides that a juvenile "may be effectively represented by counsel at all stages of proceedings under this article," and that where the juvenile or a parent files an affidavit of inability to afford an attorney, "the court shall appoint an attorney." Subsection (I) guarantees the juvenile "a meaningful opportunity to be heard," including the opportunity to testify and to present and cross-examine witnesses. Subsection (j) affords the juvenile the procedural rights an adult would have in a criminal proceeding, unless the chapter provides otherwise.

The violation hearing itself is governed by W. Va. Code § 49-4-718, "Modification of dispositional orders." Two provisions in it matter to you. Written notice must be given not less than 72 hours before the proceeding. And before the court may move a juvenile to a more restrictive alternative for violating a court order, it must find "clear and convincing proof of substantial violation." That burden is on the State, and it is higher than most parents expect — a technical slip is not automatically a substantial violation, and the word "substantial" is there to be argued.

Under the West Virginia Rules of Juvenile Procedure, Rule 47 governs probation violation proceedings and Rule 5 provides for appointment of counsel.

What you can do

1. Confirm the written notice arrived at least 72 hours before the hearing and that it states specifically what condition he is accused of violating. If it did not, or if it is vague, raise that with counsel immediately — W. Va. Code § 49-4-718 requires it. 2. If he does not already have an attorney, file the affidavit of inability to afford counsel with the clerk now and ask for appointment under W. Va. Code § 49-4-701(h). Do not wait for the hearing date. 3. Get a copy of the original probation order and mark exactly which condition is at issue. You cannot prepare against an allegation you have not read. 4. Gather proof of compliance with everything else: school attendance records, drug screen results, counseling or program attendance sheets, work schedules, receipts for fees paid. 5. Bring a concrete plan to the hearing — who supervises him day to day, what changes at home, what services he is enrolled in and when they start. Judges order detention when they cannot see an alternative. 6. Have him present, on time, and dressed for court. He has the right to be heard under W. Va. Code § 49-4-701(i), but he should testify only if his lawyer advises it. 7. Tell him not to discuss the allegations with the probation officer without counsel present.